 House of Commons |
Session 2008 - 09 Publications on the internet General Committee Debates Health |
The Committee consisted of the following Members:Chris Stanton, Committee
Clerk † attended the
Committee Public Bill CommitteeTuesday 16 June 2009(Morning)[Mr. Edward O’Hara in the Chair]Health Bill [Lords]10.30
am
The
Chairman: Before we begin, I shall make a few preliminary
announcements from the Chair. First, as a humanitarian
gesture, hon. Members may remove their jackets. In return for
that humanitarian gesture, I request that all hon. Members ensure that
their mobile phones are either switched off or in silent mode
during meetings of the Committee. There is a money resolution in
connection with the Bill, and copies are available in the
Room.
I remind hon.
Members that adequate notice should be given of amendments. As a
general rule, my fellow Chairman, Mr. Bercow, and I do not
intend to call starred amendments, including any starred amendments
that may be reached during an afternoon sitting of the
Committee. Turning
to the business of the Committee, first, we shall be considering the
programme motion, which is on the amendment paper. A debate may take
place, but it is limited to half an hour. We will then proceed to a
motion to report written evidence, which is also on the amendment
paper. I hope that we can take that formally.
That— (1)
the Committee shall (in addition to its first meeting at
10.30 am on Tuesday 16 June)
meet— (a)
at 4.00 pm on Tuesday 16
June; (b)
at 9.30 am and 1.00 pm on Thursday 18
June; (c)
at 10.30 am and 4.00 pm on Tuesday 23
June; (d)
at 9.30 am and 1.00 pm on Thursday 25
June; (2)
the proceedings shall be taken in the following order: Clauses 1 to 13,
Schedule 1, Clauses 14 to 16, Schedule 2, Clauses 17 to 19,
Schedule 3, Clauses 20 to 24, Schedule 4, Clauses 25 to 33, Schedule 5,
Clauses 34 to 37, Schedule 6, Clauses 38 to 40, new Clauses, new
Schedules, remaining proceedings on the
Bill; (3)
the proceedings shall (so far as not previously concluded) be brought
to a conclusion at 5.00 pm on Thursday 25
June. I
begin by welcoming you to the Chair of the Committee, Mr.
O’Hara. I hope that under the expert tutelage of yourself and
Mr. Bercow we can make good progress in handling this
important Bill for the national health service. I hope that this
resolution of the Programming Sub-Committee is passed by the Committee,
so that we can meet and discuss in an orderly way the various clauses
and schedules of the
Bill. Mr.
Stephen O'Brien (Eddisbury) (Con): Thank you,
Mr. O’Hara—with three apostrophes in the Room,
we are going to have some fun. I join the welcome given to you and your
co-Chairman by the Minister. We look
forward to being guided and supervised under your experience and
tutelage. I am sure that we will all endeavour to ensure that the Bill
is given proper scrutiny.
As a matter
of principle, the official Opposition have concerns about the
programming of Bills and programme motions. Indeed, from time to time
we have raised formal objections about the number of Bills that are not
given adequate time to be scrutinised properly. None the less, on this
occasion the eight scheduled sittings should be enough to give proper
scrutiny to the Bill. We will do our best to ensure that we meet that
timetable. Question
put and agreed
to. Resolved, That,
subject to the discretion of the Chairman, any written evidence
received by the Committee shall be reported to the House for
publication.—[Mr. Mike
O’Brien.]
Clause 1NHS
Constitution
Mr.
Stephen O'Brien: I beg to move amendment 1, in
clause 1, page 1, line 7, leave
out first ‘the’ and insert
‘any’.
The
Chairman: With this it will be convenient to discuss
amendment 2, in
clause 1, page 1, line 8, leave
out from ‘State’ to end and insert
‘and approved by each House of
Parliament’.
Mr.
O'Brien: Clause 1 effectively establishes the subject of
the first chapter of the Bill, the NHS constitution. My two amendments
are mutually reliant and make sense together, and I shall therefore
seek to address both in one
approach. The
amendments would change the initial phraseology to refer to
“any” document and would remove the need to be date
specific—they would remove the specificity from the Bill and
seek to probe to some degree what the Government mean by this
constitution. I hope, Mr. O’Hara, that you will give
me a little latitude on these amendments as, I hope you agree, it will
be useful for me to set out the questions of the constitution from this
side of the House. That may enable us to move through later amendments
more quickly. However, I will be guided by you to remain in
order. As
the Committee goes through the Bill, time and again—as with so
much Government legislation—we will meet regulations. The
justification is always not to have too much detail in the Bill. How,
therefore, does the Minister justify the specific reference to a
document published on 21 January 2009? I hope that he will tell the
Committee about analogous provisions in other legislation where a
document is defined by its name and date but not its
content. The
amendments also seek to reassert the power of the Houses of Parliament
on the NHS constitution. When the Prime Minister launched his
leadership bid, he said:
“One
of my first acts as prime minister would be to restore power to
Parliament in order to
build the
trust of the British people in our democracy. Government must be more
open and more accountable to Parliament”.
In his statement to the
House last Wednesday, he
said: “we
are removing ancient royal prerogatives and making the Executive more
accountable to Parliament”.—[Official Report, 10
June 2009; Vol. 493, c.
797.] He uses
“we” and claims that the Executive are restoring power to
Parliament, whereas that is, of course, a responsibility for the
House. The
Prime Minister announced the review, which will be chaired by the
Labour Chairman of the Public Administration Committee, the hon. Member
for Cannock Chase (Dr. Wright). The review will consider how Parliament
can strengthen its scrutiny of the Government and how control of
Parliament’s daily business can be wrestled away from them and
their Whips. Yet, the Government are bringing to the House legislation
that enshrines something, the contents of which the House has no power
over. In light of the claimed democratic accountability and the move to
more open and transparent government, and particularly, taking into
account the Government’s rhetoric on restoring power to
Parliament, how can the Minister justify an undebated constitution?
What has been published and put forward as a document is, effectively,
a settled
item. Not
only has Parliament had no opportunity to debate the contents of that
constitution, but the constitution was launched in a closed signing
ceremony at No. 10, where it was given legitimacy, if not force, by
the hand of the Prime Minister—again,
sidelining Parliament. Furthermore, if the amendment succeeds
and the constitution gets the parliamentary debate that our NHS
deserves and is amended as it should be, how will the Minister justify
the cost of pulping all the documents that have been
printed? In
addition, there is now an illogicality in the legislation. The
Government rightly accepted the amendments put forward by my noble
Friend Lord Howe in the other place that introduced clause 3(5). That
means that the guiding principles of the constitution cannot be changed
except by regulations made by the Secretary of State. However, if
Parliament must be invoked to change the guiding principles—I
argue that it should be—then surely it should be invoked to
establish them. The precedent is dangerous, because, as I understand
it, the Minister is saying, “What I say goes, and if you want to
contradict me, you must change the law.” Where would we be if,
for instance, Justice Ministers operated in a similar way? It might be
right to debate this when we come to that clause, but will the Minister
confirm that regulations made under clause 3(5) will be made under the
negative resolution procedure? And will he tell us whether the
Delegated Powers and Regulatory Reform Committee has advised on that
power?
Government
Back Benchers should not pass over that question lightly. They know
that the guiding principles set out in the constitution are not the
excellent principles of the NHS plan, which takes us back a good 10
years. Those are the principles that we have argued should be put
forward as part of the constitution and which were implemented before
the Prime Minister came up with his
proposals. If
one compares the constitution with the principles in the NHS plan, the
redaction of those principles was undertaken by the current Secretary
of State for Health, who was a Health Minister back in 2006-07.
Government
Members know that that redaction, which the current Secretary of State
was instrumental in ensuring took place, removed the key principle
that “Public
funds for healthcare will be devoted solely to NHS
patients”.
Should Parliament not
have a say in
that? At
the heart of the amendments lies the question of what is a
constitution. Is it something which, in regard to a public body, or
even a body which predominantly serves the public—the statutes
of universities and Royal Colleges come to mind—should have some
statutory democratic oversight of its content, even through a body such
as the Privy Council, although I have to confess that that example does
not necessarily help my argument? Or is it simply a useful noun that
can be put at the head of a piece of paper, so that the Government of
the day can get some relatively easy headlines, but which remains
ontologically
meaningless? The
question is a moot one, given the Prime Minister’s statement
last week that he favours a written constitution for the country. So
what precedents will we set as a Committee if we say that this House is
perfectly content with constitutions that are solely the product of the
Executive rather than of the legislature? Lest anyone think that the
comparison is spurious, at a little over 3,000 words this NHS
constitution is three quarters of the length of the original US
constitution. That comparison was made by none other than Lord Naseby
in the other
place. Then
there is the further question of precedent-setting, which is why these
amendments are so fundamental to the whole tenor of this part of the
Bill. The last time the Government included a document of
constitutional importance in legislation without giving either House
the opportunity to debate and amend it, the then Minister, the right
hon. Member for Leicester, East (Keith Vaz), told the House that the
document had all the legal force of The Beano. The
document was the European charter of fundamental rights. In 2005, it
became clear that it was being referred to by the European Court of
Justice in its judgments, but it is not yet justiciable in England and
Wales within our jurisdiction pertaining to that part of the law. The
rulings of the European Court of Justice are legally binding on England
and Wales, and in Scotland and Northern Ireland, and thus it bites.
That document is part of the Lisbon treaty, which the Government keep
reminding us that they support, but which they are not prepared to give
the country a referendum to
endorse. Turning
to justiciability, if the constitution is meant to have some real
effect, then one might envisage that, initially, people would be
encouraged, even excited, by the prospect. They now have a means by
which they can seek to enforce rights on access to, and the quality and
type of, healthcare. Even if it can be argued that it does not go that
far, that it does not actually create entitlements and that what is in
place is already enshrined in statute, there is an issue about whether
this is going to give rise to justiciability for what is known in the
law—the Minister is a highly-reputed, qualified lawyer, so he
will understand the importance of this—as remedy in equity. That
involves things such as injunctive relief and any of the other specific
enforcement processes that are possible by way of
reference.
Of course,
there is a special species of legal action, which is particularly known
to the public sector— the question of judicial review.
That relates to whether the constitution and the way in which it has
been framed in the legislation will give rise to the opportunity for
litigants to pray it in aid in support of any kind of judicial
review of ministerial or other public office decisions. That leads to
the question whether there would be not only injunctive relief, but any
kind of compensatory provision for those enforced to take action that
they did not wish to take, or to have to correct an action or inaction
that they have found was not part of the administrative process that
they should have
adopted. 10.45
am
|
| |
| ©Parliamentary copyright 2009 | Prepared 17 June 2009 |